75 F.

3d 569
106 Ed. Law Rep. 1030

Sharlene K. WATSON, Plaintiff-Appellant,

v.
UNIVERSITY OF UTAH MEDICAL CENTER, Dale Gunnell,
Director of
University of Utah Medical Center; Evelyn Hartigan,
Individually and as Administrative Director of Nursing;
William Duncan, Individually and as Employee of Human
Resource; Sally Heard, Individually and as Head Nurse of
Labor and Delivery; Donna Harland, Individually and as
Director of Nursing; Heidi Klenk; William T. Evans;
Robert Steed; David Robinson, Director of Division of
Occupational and Professional Licensing, DefendantsAppellees.
No. 94-4209.

United States Court of Appeals,

Tenth Circuit.
Jan. 19, 1996.

Blake S. Atkin of Atkin & Lilja, Salt Lake City, Utah, for PlaintiffAppellant.
Elizabeth King, Assistant Attorney General (Jan Graham, Attorney
General, with her, on the brief), Salt Lake City, Utah, for DefendantsAppellees.
Before MOORE and LOGAN, Circuit Judges, and COOK, District
Judge.*
LOGAN, Circuit Judge.

Plaintiff Sharlene K. Watson appeals the district court's grant of summary

judgment in favor of defendants University of Utah Medical Center (Medical

Center) and several Medical Center employees, most of whom she sued in both
their official and individual capacities, in her suit brought under 42 U.S.C.
1983.1 Her amended complaint alleged that these defendants violated her due
process rights under the Fifth and Fourteenth Amendments when they
participated in disciplinary action taken against her as an employee of the
Medical Center. Reading her complaint liberally, plaintiff asserted defendants
deprived her of her liberty interest in practicing her profession as a nurse and
her property rights in her public employment and in her nursing license, all
without due process of law.
2

On appeal plaintiff argues the district judge erred in ruling that (1) the Medical
Center and defendants, insofar as they were sued in their official capacities, are
entitled to immunity under the Eleventh Amendment; and (2) the individual
defendants are entitled to qualified immunity insofar as they were sued as
individuals.

* Plaintiff was working as a labor and delivery nurse on February 22, 1992,
when she participated in the birth of a baby at the Medical Center. Although a
medical doctor, David Dowling, was present plaintiff delivered the baby. The
Medical Center had a policy that nurses could deliver only "in emergency
situations (precipitous deliveries)." App. 80. The parties dispute whether that
condition was met here. Plaintiff's version is that she knew that Dr. Dowling
had been vomiting earlier in the evening, that he arrived just before the birth,
and that he requested that she deliver the baby under his supervision. One of the
defendants, nurse Heidi Klenk, was present at the birth; she stated that the
delivery was not imminent when the doctor entered the room, but that plaintiff
told the doctor it was her baby to deliver. Dr. Dowling gave somewhat different
accounts of the delivery on different occasions but essentially stated that he did,
in one or two words, ask plaintiff to perform the delivery. He also stated that
although he had been ill that evening he could have delivered the baby, but that
plaintiff could well have believed he was asking her to deliver the baby because
he was too ill to do so.

A few days after the delivery, Klenk informed defendant Donna Harland,
director of nursing, and defendant Sally Heard, head nurse of labor and
delivery, that she believed plaintiff had acted improperly in delivering the baby.
Shortly thereafter, Heard, Harland, and defendant William Duncan, Medical
Center Human Resource Director, met with plaintiff to discuss the allegedly
improper delivery. Plaintiff asserts Duncan and Heard told her they would
make an example of her because they did not want nurses delivering babies.
Plaintiff responded with her version of the events and asked that they speak

with two other employees present during the delivery, Dr. Dowling and nurse
Tyra Robinson, to determine what occurred. Duncan and Heard agreed to do so.
At this meeting they informed plaintiff that if she had delivered a baby against
Medical Center policy her employment could be terminated.
5

On March 2, 1992, plaintiff met with Duncan, Heard and Harland a second
time and presented, along with her own recounting, four coworkers as
witnesses. Dr. Dowling was not present, however, and plaintiff contends that
Dowling's supervisors discouraged his attendance. Further, plaintiff asserts that
one of her coworkers, nurse Robinson, was harassed in the meeting and told to
leave. After a five-hour meeting, Duncan and Harland notified plaintiff that she
would be placed on administrative leave without pay and that the matter would
be referred to the state Division of Professional Licensing (DOPL) for
investigation.

Plaintiff asserts that she then requested from defendant Evelyn Hartigan,
Associate Administrator/Associate Dean of the College of Nursing, an
appointment to protest the outcome under Medical Center employee grievance
procedures. Hartigan cancelled the meeting; plaintiff states that Hartigan called
her and told her she had nothing to grieve.

DOPL investigated. Apparently at first it found no violation; then it changed its

decision and thereafter changed its decision again. In May 1992, plaintiff filed
this suit.2 The record shows the Medical Center took no further action
concerning plaintiff's employment; she apparently remained on unpaid
administrative leave. Plaintiff did not actively seek another job until October
1992, and found employment in December 1992.3

Defendants moved for summary judgment. The district court ruled that the
Medical Center was entitled to Eleventh Amendment immunity. The court
rejected the individual defendants' claims to absolute immunity, based on their
assertion that they acted in an adjudicatory capacity when they determined
whether plaintiff was subject to disciplinary action for violating hospital policy.
The court ruled, however, that the individual defendants were entitled to
qualified immunity, because plaintiff failed to meet her burden of establishing
that at the time she was placed on leave without pay defendants' actions
violated clearly established law.

On appeal, we review the district court's grant of summary judgment de novo,

applying the legal standard of Fed.R.Civ.P. 56(c). Summary judgment is
appropriate if the record shows that "there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law." Wolf
v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995). In applying
this standard, "we examine the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing summary
judgment." Id.
II
10

We first address the issue of the Medical Center's immunity from liability under
the Eleventh Amendment. The Eleventh Amendment bars a suit for damages
against a state in federal court, absent a waiver of immunity by the state.
Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662
(1974). Congress did not abrogate state Eleventh Amendment immunity when
it enacted 1983, Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59
L.Ed.2d 358 (1979); however, that immunity extends only to the states and
governmental entities that are "arms of the state." Ambus v. Granite Bd. of
Educ., 995 F.2d 992, 994 (10th Cir.1993) (en banc). The arm-of-the-state
doctrine bestows immunity on entities created by state governments that
operate as alter egos or instrumentalities of the states. Mascheroni v. Board of
Regents of the Univ. of Cal., 28 F.3d 1554, 1559 (10th Cir.1994).

11

To make the determination whether an entity is an arm of the state we engage

in two general inquiries. "[T]he court first examines the degree of autonomy
given to the agency, as determined by the characterization of the agency by
state law and the extent of guidance and control exercised by the state. Second,
the court examines the extent of financing the agency receives independent of
the state treasury and its ability to provide for its own financing." Haldeman v.
State of Wyo. Farm Loan Bd., 32 F.3d 469, 473 (10th Cir.1994); see also
Mascheroni, 28 F.3d at 1559. "The governmental entity is immune from suit if
the money judgment sought is to be satisfied out of the state treasury."
Haldeman, 32 F.3d at 473.

12

Our cases have consistently found state universities are arms of the state. See
Mascheroni, 28 F.3d at 1559 (University of California); Seibert v. State of
Okla., 867 F.2d 591, 594 (10th Cir.1989) (University of Oklahoma); Prebble v.
Brodrick, 535 F.2d 605, 610 (10th Cir.1976) (University of Wyoming);
Brennan v. University of Kan., 451 F.2d 1287, 1290 (10th Cir.1971)
(University of Kansas and University of Kansas Press); see also Korgich v.
Regents of N.M. Sch. of Mines, 582 F.2d 549, 551-52 (10th Cir.1978) (New
Mexico School of Mines).

13

Turning to the University of Utah we note the Utah legislature established a

State Board of Regents which has the "power to govern the state system of
higher education consistent with state law," and is vested with the "control,
management, and supervision" of the University. Utah Code Ann. 53B-1101(2), 103(2). Fifteen of the sixteen members of the Board of Regents are
appointed by the governor with the consent of the state senate, id. 53B-1104(1), and the Board of Regents appoints the president of the University of
Utah, id. 53B-2-102. The University of Utah has a Board of Trustees with ten
members--eight appointed by the governor--which is responsible for many
administrative functions of the University. See id. 53B-2-103, 104(1). The
University holds all of its real and personal property as a trustee of the State
Board of Regents. See id. 53B-20-101. Pharmaceutical & Diagnostic Servs. v.
University of Utah, 801 F.Supp. 508 (D.Utah 1990), in finding the University
of Utah is an arm of the state, relied on some of these provisions, as well as the
Utah Supreme Court's determination that "[t]he university is clearly a state
institution." See id. at 512 (citing University of Utah v. Board of Examiners,
295 P.2d 348 (Utah 1956)). We are satisfied that the University is not
autonomous but rather is a state-controlled entity.
14

We move then to the second area of inquiry: the degree of state funding and the
University's ability to issue bonds and raise taxes, i.e., the likelihood that a
judgment against the University might be paid from state funds. See Ambus,
995 F.2d at 996. Like the school district in Ambus, the University participates
in the Utah Risk Management Fund which provides, in part, insurance against
money judgments. See Utah Code Ann. 63A-4-103. However, school
districts are subject to special provisions under the Act, see id., 63A-4-204,
and the statute makes a clear distinction between state agencies and public
school districts, which are treated as state agencies for purposes of the Risk
Management Fund. The language of the risk management statute, id. 63A-4103, refers to the Board of Regents and its higher education institutions as state
agencies, and requires that when the Board of Regents authorizes the higher
education institutions to purchase their own insurance, it "shall ensure that the
state is named as an additional insured on any of those policies." This suggests
that the state might be responsible for funding a judgment against the
University of Utah. Further, although the University may "handle its own
financial affairs" under the general supervision of the Board, id. 53B-7101(9), the budget of the University is controlled to a large degree by the State
Board of Regents, the legislature and the governor. See id. 53B-7-101. It does
appear that any judgment against the University might be satisfied, at least
indirectly, from state resources.

15

Although we are satisfied that the University is an arm of the state, the more
difficult question is whether the University of Utah Medical Center has that

status. Plaintiff contends that the Medical Center is a separate and distinct entity
that is "more akin to the private hospitals with which it competes." Appellant's
Brief at 7. She points out that a small fraction (less than five percent) of the
Medical Center's operating income comes from the state, and states that "any
judgment obtained against the Medical Center in this case could easily come
from patient revenues rather than from any state coffers." Id. She also asserts
that, in Condemarin v. University Hospital, 775 P.2d 348, 366 (Utah 1989), the
Utah Supreme Court found that the Medical Center is not an arm of the state.
She quotes Justice Stewart's observations in Condemarin that the Medical
Center is "essentially supported by non-state funds" and that the hospital is
"practically [ ] self-supporting." See Condemarin, 775 P.2d at 373-74.
16

The holding of Condemarin, however, is that Utah statutes limiting tort

recovery are unconstitutional as applied to the Medical Center. This holding
rested in part upon the reasoning that

17 problem with Utah's Governmental Immunity Act is that is has created limited
The
liability under the screen of governmental immunity for activities which were
traditionally subject to the deterrent effects of tort liability. Furthermore,
notwithstanding the fact that it is a government-owned health care facility, the
[Medical Center], in its patient care programs, virtually operates in the public sector,
competing with other private, nonprofit entities, as well as with for-profit hospitals.
In the area of patient service, it is not in the business of establishing government
policy. For that reason, the common law exception existed to prevent governmental
immunity from barring medical malpractice actions in Utah, and for that reason, the
deterrence factor in the balancing analysis this Court should apply weighs in favor of
liability, not limitation.
18

Id. at 365 (footnote omitted). Plaintiff cites Condemarin for the proposition that
the Medical Center did not demonstrate that "requiring the hospital to shoulder
the full cost of liability will have a substantial effect on the state's treasury." Id.
at 374. That statement appears in Justice Stewart's separate opinion, and is not
the question we must answer. Although plaintiff states that Condemarin found
that the Medical Center is not an arm or alter ego of the state, we do not read
Condemarin as so holding. In fact, the majority in Condemarin stated that "[the
Medical Center] is a government-owned health care facility." Id. at 365.

19

Our review of the record supports the conclusion that the Medical Center is an
integral part of the University of Utah. The Medical Center is governed by the
University Board of Trustees, and its annual budget is subject to approval by
the University Board and the State Board of Regents. The Bylaws of the
Medical Center, Article I, provide that the Medical Center is a "component

organization" of the University of Utah. Supp.App., Bylaws at 1. The Medical

Center Board is "created by, and subject to the authority of the President of the
University and the Institutional Council," and members are "appointed by the
president of the University with approval by the Institutional Council." Id.,
Bylaws, Arts. III and IV. Finally, the University president and Institutional
Council retain authority to grant final approval for the long range plan of the
Medical Center, the annual budget and appropriations request, major
construction, capital financing, fund raising programs, and University policies,
procedures, rules, and regulations "relating to or affecting" the Medical Center.
Id., Art. V. Further, the Chief Operating Officer of the Medical Center reports
directly to the University Vice President for Health Sciences. Id., Art. VII.
20

The Medical Center clearly is not autonomous from the University or the state.
The bothersome question is whether a judgment against the Medical Center
would come from the state treasury. It is undisputed that the Medical Center
receives most of its budget from patient billing and only a small amount of its
funding, somewhere between 3.5 and 5%, comes from state appropriations.
Although, unlike local school boards, it cannot raise taxes or issue bonds
without approval of the state, the Medical Center can increase patient billings,
thus reducing the likelihood that any judgment will be paid from state funds.
The only definite statement concerning monies to satisfy a judgment appears in
the Risk Management Fund manager's statement: The bulk of any judgment
would be paid from the state Risk Management Fund, although twenty-five
percent of a back wages award would come from the University. See IV R. doc.
121. The funding issue makes this a close case, but on balance we agree with
the district court's determination that the University of Utah Medical Center, as
a part of the University of Utah, is an arm of the state entitled to Eleventh
Amendment immunity. The district court thus correctly found that the Medical
Center and the individual defendants sued in their official capacities are entitled
to the state's immunity. See Brennan, 451 F.2d at 1290-91.

III
21

We turn now to the issue whether the district erred in finding that the individual
defendants are entitled to qualified immunity. "[G]overnment officials
performing discretionary functions, generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73
L.Ed.2d 396 (1982). Qualified immunity protects defendants not only from
liability but also from suit. Id.

22

Once the defendant raises the defense of qualified immunity, "the plaintiff then
has the burden to show with particularity facts and law establishing the
inference that the defendants violated a constitutional right." Walter v. Morton,
33 F.3d 1240, 1242 (10th Cir.1994). "This burden is quite heavy ... for the
plaintiff must do more than simply allege the violation of a general legal
precept. The plaintiff must 'instead demonstrate a substantial correspondence
between the conduct in question and prior law allegedly establishing that the
defendant's actions were clearly prohibited.' " Jantz v. Muci, 976 F.2d 623, 627
(10th Cir.1992) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738), cert.
denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). "The contours
of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Id. (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)).
Only if plaintiff makes that threshold showing does the burden shift to
defendants to show that no material facts remain in dispute that would defeat
defendant's claim of qualified immunity. Id. The district court found that
"plaintiff's general claims of being denied property and liberty interests without
due process are insufficient to satisfy her shifted burden of establishing that
defendants' alleged actions violated clearly established law at the time of her
being placed on administrative leave without pay."4 App. 17.

23

"To assess whether an individual was denied procedural due process, 'courts
must engage in a two-step inquiry: (1) did the individual possess a protected
interest such that the due process protections were applicable; and, if so, then
(2) was the individual afforded an appropriate level of process.' " Hatfield v.
Board of County Comm'rs, 52 F.3d 858, 862 (10th Cir.1995) (quoting Farthing
v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994)); see also Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492-93, 84
L.Ed.2d 494 (1985). In asserting a procedural due process violation, a plaintiff
must first demonstrate that she had a protected property or liberty interest.
Plaintiff asserts, as we read her complaint and pleadings, deprivation of process
in regard to three separate protected interests. We address each in turn.

24

* First, plaintiff appears to contend she had a property interest in her continued
public employment at the Medical Center. The question whether a plaintiff had
a protected property interest is determined by state law. Casias v. City of Raton,
738 F.2d 392, 394 (10th Cir.1984). Under Utah law, "any employment contract
which has no specified term of duration is an at-will relationship," Berube v.
Fashion Centre, Ltd., 771 P.2d 1033, 1044 (Utah 1989), and such employment
may be terminated at any time by the employer. Brehany v. Nordstrom, Inc.,
812 P.2d 49, 53 (Utah 1991). An employee may rebut this presumption of atwill employment by showing that "the parties expressly or impliedly intended a

specified term or agreed to terminate the relationship for cause alone." Berube,
771 P.2d at 1044.
25

In the instant case, plaintiff does not contend that she had a contract for a
specific term. She refers to an employee handbook that provides for a grievance
procedure for employees. Under Utah law an employment manual or handbook
that provides employees cannot be fired except for cause can rebut the
presumption of employment at will. See Johnson v. Morton Thiokol, Inc., 818
P.2d 997, 1000-01 (Utah 1991).

26

The problem here is that plaintiff did not produce evidence of what the
employment manual said in this regard, nor did she provide a copy of the
grievance procedure. She points to statements by defendants that they knew she
was entitled to a grievance procedure. But those statements do not provide any
information as to what the grievance procedure involved. She identifies no Utah
statutes on which a property interest might be grounded. Cf. Ambus v. Granite
Bd. of Educ., 975 F.2d 1555, 1562 (10th Cir.1992), modified and aff'd en banc,
995 F.2d 992 (10th Cir.1993) (tenured teacher's property interest in continued
employment created by Utah statute on termination of school employees and
professional agreement).

27

Plaintiff did not meet her burden to establish a property interest in continued
employment. See Conaway v. Smith, 853 F.2d 789, 793-94 (10th Cir.1988)
(plaintiff failed to produce manual that might have established termination
procedures; did not meet burden to show property interest in continued
employment). Because plaintiff failed to make a showing that she had a
protected property interest in continued employment, she failed to meet her
burden to show defendants violated a clearly established right. Thus, defendants
are entitled to qualified immunity as to this claim.

B
28

As to plaintiff's allegations that defendants denied her due process with regard
to her property right to her nursing license, she has not shown enough: DOPL
took no action to revoke or suspend her license. See Phelps v. Wichita EagleBeacon, 886 F.2d 1262, 1269 (10th Cir.1989) (discussing fact that plaintiff did
not lose status as lawyer; thus failed to state a deprivation of liberty or property
interest). Further, in a typical due process case in which an employment status
decision is not dependent on a DOPL determination, hospital
officials/employers would be free to ask DOPL for clarification of their initial
determination. This is especially so because the Medical Center had previously
been investigated by DOPL for reports of nurses delivering babies. See II R.

doc. 70.
C
29

Plaintiff also asserted that her liberty interests were implicated by defendants'
actions surrounding the decision to place her on administrative leave without
pay. We have recognized that "[w]hen a public employer takes action to
terminate an employee based upon a public statement of unfounded charges of
dishonesty or immorality that might seriously damage the employee's standing
or associations in the community and foreclose the employee's freedom to take
advantage of future employment opportunities, a claim for relief is created."
Melton v. City of Oklahoma City, 928 F.2d 920, 927 (10th Cir.) (en banc), cert.
denied, 502 U.S. 906, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991).

30

Once plaintiff has identified a clearly established right, we examine whether

she has come forward with the necessary factual allegations, Ramirez v.
Oklahoma Dep't of Mental Health, 41 F.3d 584, 593 (10th Cir.1994), to
establish that defendants violated that right. Plaintiff asserts that defendants
infringed her liberty interest in her professional reputation and ability to obtain
future employment by charges they made after they placed her on
administrative leave. In order to show that defendants infringed on her liberty
interest, plaintiff must show several elements.First, to be actionable, the
statements must impugn the good name, reputation, honor, or integrity of the
employee. Board of Regents v. Roth, 408 U.S. [564, 573, 92 S.Ct. 2701, 2707,
33 L.Ed.2d 548 (1972)]. Second, the statements must be false. Codd v. Velger,
429 U.S. 624, 628 [97 S.Ct. 882, 884-85, 51 L.Ed.2d 92 (1977)]. Third, the
statements must occur in the course of terminating the employee or must
foreclose other employment opportunities. Paul [v. Davis, 424 U.S. 693, 710,
96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976) ]. And fourth, the statements
must be published. Bishop v. Wood, 426 U.S. 341, 348 [96 S.Ct. 2074, 2079,
48 L.Ed.2d 684 (1976)]. These elements are not disjunctive, all must be
satisfied to demonstrate deprivation of the liberty interest. See, e.g., Melton v.
City of Oklahoma City, 928 F.2d 920 (en banc) (trial court erred in instructing
jury to find either stigmatization or loss of employment opportunities), cert.
denied, [502 U.S. 906, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991) ].

31

Workman v. Jordan, 32 F.3d 475, 481 (10th Cir.1994), cert. denied, --- U.S. ---, 115 S.Ct. 1357, 131 L.Ed.2d 215 (1995) (some citations omitted). We turn
now to whether plaintiff raised questions of fact as to each of these elements.

32

Plaintiff produced evidence that her supervisors made public statements to the
entire nursing staff not only that she had "illegally" delivered a baby but also

that she lied about the incident. See App. 109-10. These public charges
certainly impugn her honesty and integrity. Plaintiff also produced evidence
that these charges were false. First, as to delivering the baby, the DOPL
initially determined that plaintiff had done nothing wrong and eventually
concluded that it would take no action. Further, as to plaintiff being "a liar," the
record contains conflicting evidence as to what actually occurred in the delivery
room. Nurse Robinson's version, and to some extent Dr. Dowling's version,
support the conclusion that plaintiff told the truth about the delivery; defendant
Klenk's statements contradict plaintiff's version of events, and there is evidence
that defendants published to others that Klenk's version was correct and
plaintiff's version was false. Thus, plaintiff produced a question of material fact
as to whether defendants' charges that plaintiff "illegally" delivered a baby and
then lied about it were false.
33

Next, plaintiff must show defendants made the statements in the course of
terminating her employment. The allegedly false statements here were made
after defendants placed plaintiff on administrative leave without pay, but we
believe the jury could find plaintiff was constructively discharged. Plaintiff
produced evidence that defendants agreed to abide by the DOPL decision but
then attempted and apparently initially succeeded in getting the DOPL to
change that decision when it was in favor of plaintiff. See infra footnote 6.
When the DOPL finally changed its determination, after plaintiff filed this
lawsuit, the Medical Center defendants never offered to reinstate plaintiff.
Thus, although plaintiff initially was placed on leave without pay, if defendants
never took any action to reinstate her, a jury could find that the alleged
defamation "occurred in the course of the termination of employment." Melton,
928 F.2d at 926.

34

Finally, plaintiff made a showing that defendants' actions foreclosed her future
employment opportunities in her chosen field as a labor and delivery nurse.
Although she was able to secure employment as a nurse, it was not as a labor
and delivery nurse as a result of dissemination of information concerning her
troubles in the relatively close-knit hospital community in Salt Lake City. See
App. 115; II R. doc. 70 (plaintiff's deposition).

35

We believe plaintiff has set out a claim of a liberty deprivation--she has raised
an issue of material fact whether "her dismissal resulted in the publication of
information which was false and stigmatizing--information which had the
general effect of curtailing her future freedom of choice or action." Asbill v.
Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1503 (10th Cir.1984). Thus,
she has made a showing that she was entitled to notice and a due process
hearing to clear her name. See Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n.

12 ("The purpose of such notice and hearing is to provide the person an

opportunity to clear [her] name.").

36

The more difficult question is whether plaintiff has raised a question of material
fact that defendants denied her that due process hearing. Defendants assert that,
as a matter of law, the March 2 meeting provided all the procedural due process
to which plaintiff was entitled. We disagree. The publication of the allegedly
false and stigmatizing information--that plaintiff "illegally" delivered a baby
and lied about it--occurred after the March 2 meeting. Therefore, plaintiff was
entitled to a hearing after the publication, which was apparently on March 3,
1992. App. 109-10.

37

Defendants, however, argue that plaintiff waived any further hearing because
she did not file a grievance after the March 2 meeting. Plaintiff responds that
defendants discouraged her from filing a grievance, although defendants dispute
this. See App. 61-62, 92-93, 102, 106-08. Plaintiff stated in her deposition that
she actually made an appointment with Evelyn Hartigan to initiate a grievance
but was told she had "no grounds for a grievance," id. at 107-08, and that
defendant Duncan told her that "he had done it [told her story] for [her]." Id. at
102. Arguably at this point plaintiff had nothing to grieve because no final
decision as to her job status had been made. Defendants had decided and
plaintiff agreed--according to a March 23, 1992, letter from the assistant
attorney general, see id. at 81; see also V R. 194, ex. B5 --to allow the DOPL to
conduct an investigation and to let her job status be determined by the result of
DOPL's determination on the matter. Presumably, if DOPL declined to take
action against plaintiff's nursing license, she would be returned to her job at the
Medical Center and as a result her name would be cleared. If, on the other
hand, DOPL initiated action to revoke or suspend her nursing license, plaintiff
would have the type of hearing (with the right to representation, to present
witnesses, etc.) that would satisfy our due process concerns. Thus, although
plaintiff did not pursue a grievance procedure with the Medical Center, she
agreed to a procedure by a third party state agency to serve the same purpose.

38

Plaintiff alleges that defendants interfered with the DOPL process. Specifically,
she asserts that after the DOPL investigator initially determined plaintiff had
not violated nursing practices, some of the defendants contacted DOPL
personnel and exerted pressure to change that initial decision.6 Defendants
assert that DOPL initially decided there was a violation justifying a prosecution
to terminate her nursing license, but then decided there was not. These disputed
issues of material fact cannot be resolved on summary judgment. The outcome
of the DOPL investigation may have been prolonged by the fact that plaintiff
herself filed this lawsuit before the DOPL made a written report or

determination. Further, plaintiff failed to pursue the grievance process at this

point. But defendants had agreed to abide by the DOPL decision and then
allegedly failed to do so when that decision was favorable to plaintiff.
39

The question then becomes whether defendants' alleged actions violated a

clearly established right of which they should have been aware. We believe
they do. If Medical Center officials agreed to follow a specific avenue to
resolve the status of plaintiff's employment, and then actively interfered with
that process, they violated plaintiff's right to procedural due process, a right
clearly established at the time. See, e.g., Melton, 928 F.2d 920. Defendants are
not entitled to qualified immunity on plaintiff's liberty claim.

IV
40

In summary, we AFFIRM the district court's summary judgment on the

Eleventh Amendment immunity, and its grant of qualified immunity to the
individual defendants on plaintiff's alleged property interests in continued
employment and in her nursing license. We hold, however, that plaintiff has
sufficiently met her burden to show that defendants' actions violated her liberty
interests in the protection of her reputation and freedom to take advantage of
other employment opportunities that summary judgment based on qualified
immunity was improper on that issue. We therefore REVERSE that portion of
the case and REMAND for further proceedings in accord with this opinion.

The Honorable H. Dale Cook, Senior United States District Judge, United
States District Court for the Northern District of Oklahoma, sitting by
designation

The complaint names as defendants Robert Steed, Utah Department of

Commerce, Division of Occupational and Professional Licensing, (DOPL) and
David Robinson, Director of Division of Occupational and Professional
Licensing. The district court found that DOPL was entitled to Eleventh
Amendment immunity from damages. The district court also found that the
issuance of a letter from the DOPL mooted the other claims against DOPL and
DOPL officials Steed and Robinson in their official and individual capacities.
Although the DOPL is mentioned as an appellee a few times in plaintiff's
appellate briefs no argument is made against the DOPL defendants, and we do
not consider claims against them as part of this appeal
The complaint also listed claims under Utah common law. The district court
declined to exercise jurisdiction over plaintiff's state law claims, dismissing

them without prejudice. No argument is made on appeal with respect to the

state law claims.
2

Plaintiff's suit included a request for temporary restraining order, preliminary

injunction and permanent injunction requiring that DOPL take no action other
than to dismiss the Medical Center's complaint to the DOPL. The DOPL took
no action after the suit was filed until it agreed to send a letter essentially
stating that no action would be taken on plaintiff's nursing license

Plaintiff states that she delayed looking for work, in part because she expected
to resume employment at the Medical Center, and in part because she had a
baby in August 1992

The district court stated that despite plaintiff's allegations that defendants acted
with malice this is not a case in which defendant's subjective intent is an
element of the claim. App. 17 (quoting Harlow, 457 U.S. at 817, 102 S.Ct. at
2737-38) ("bare allegations of malice" do not defeat qualified immunity)

This exhibit is a letter from plaintiff's attorney to an assistant attorney general

stating agreement that plaintiff "will be reinstated with full back pay if her
license is not revoked by the nursing board."

Plaintiff's evidence of the defendants' actions to change the outcome of the

DOPL investigation included (1) a letter from defendant Harland to VaLaine
Pack, Nursing Consultant to DOPL, stating that the DOPL investigator had
informed her that it is not a violation of state regulations for a nurse to deliver a
baby "if the doctor tells her she can and is in the room," and that "[w]e at [the
Medical Center] strongly disagree with this interpretation," App. 29; (2) a
memorandum dated May 28, 1992, by defendant Harland indicating that she
and defendants Hartigan and Heard met personally with Pack on May 4, 1992,
to discuss and complain of the DOPL's "no violation" finding with respect to
plaintiff, IV R. doc. 128, ex. B (Harland deposition ex. 18); and (3) a
deposition of the DOPL investigator stating that after the initial decision not to
take action against plaintiff's license, but to send an informal reprimand, a
meeting was held in May 1992 including Pack, Steed and Robinson at which it
was determined that such a letter would not be sent, III R. doc. 102, Godnick
deposition